from a judgment of conviction, pursuant jury verdict, of
child abuse and neglect, 29 counts of use of a child in the
production of pornography, 10 counts of possession of visual
presentation depicting the sexual conduct of a child, and
open or gross lewdness. Eighth Judicial District Court, Clark
County; Valerie Adair, Judge.
Brooks, Public Defender, and William M. Waters, Deputy Public
Defender, Clark County, for Appellant.
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Jonathan VanBoskerck, Chief
Deputy District Attorney, and Ryan J. MacDonald, Deputy
District Attorney, Clark County, for Respondent.
THE COURT EN BANC.
200.710(2) criminalizes the knowing use of "a minor to
be the subject of a sexual portrayal in a performance."
Likewise, NRS 200.730 criminalizes the knowing and willful
possession of "any film, photograph or other visual
presentation depicting a person under the age of 16 years as
the subject of a sexual portrayal." For the purposes of
these statutes, NRS 200.700(4) defines "[slexual
portrayal" as "the depiction of a person in a
manner which appeals to the prurient interest in sex and
which does not have serious literary, artistic, political or
appeal, we are asked to consider the appropriate units of
prosecution under NRS 200.710(2) and NRS 200.730.
Specifically, we first consider whether the State improperly
charged appellant Joshua Shue with two counts of violating
NRS 200.710(2) for each video file that depicts two minors.
We conclude that the term "a minor" under NRS
200.710(2) unambiguously allows for a separate conviction for
each minor used in each performance, and thus, Shue's 29
convictions under NRS 200.710 are not impermissibly
redundant. We also consider whether Shue was
improperly convicted under NRS 200.730 on a per-image basis.
We conclude that under Castaneda v. State, 132 Nev.,
Adv. Op. 44, 373 P.3d 108 (2016), the State improperly relied
on a per-image unit of prosecution by failing to present
evidence showing the mechanics of how Shue recorded and saved
the various video files and digital images of children on his
laptop. Thus, Shue is entitled to have 9 of his 10
convictions under NRS 200.730 vacated.
we consider whether Nevada's statutes barring the
"sexual portrayal" of minors violate the First
Amendment of the United States Constitution as being
unconstitutionally overbroad or as a content-based
restriction that fails strict scrutiny, or violate the Due
Process Clause of the Fourteenth Amendment of the United
States Constitution as being impermissibly vague. We conclude
that the statutes do not implicate protected speech and are
not unconstitutionally vague on their face or as applied to
Shue. Thus, we reject these claims.
we consider whether (1) sufficient evidence supports
Shue's conviction of open or gross lewdness under NRS
201.210, and (2) any of Shue's asserted trial errors
warrant reversal. We conclude that (1) there is insufficient
evidence to support Shue's conviction under NRS 201.210,
and (2) Shue's asserted trial errors do not warrant
reversal. As such, we affirm Shue's 29 convictions under
NRS 200.710(2), 1 conviction under NRS 200.730, and the
single child abuse conviction under NRS 200.508. We further
vacate Shue's remaining 9 convictions under NRS 200.730,
and we reverse his single conviction under NRS 201.210.
AND PROCEDURAL HISTORY
summer of 2010, Shue began periodically staying at his
then-girlfriend's residence. At that time, Shue's
then-girlfriend lived with her daughter, H.I., and her two
sons, K.I. and F.I. During Shue's visits, H.I. was
between the ages of 15 and 17, K.I. was between the ages of
11 and 13, and F.I. was between the ages of 10 and 12. In
August 2012, Shue approached H.I. from behind and used a
small digital camera to take a picture underneath her skirt.
Shue showed H.I. the picture, and she asked him to delete it.
Later that night, Shue kissed H.I. on the mouth without her
consent. H.I. reported both incidents to the police the next
the police interviewed Shue and mentioned the possibility of
searching his computer, and he indicated that such a search
would reveal some things that are not "on the
up-and-up." The police then obtained a warrant to search
Shue's residence, and they seized Shue's digital
camera and laptop. Shue's digital camera revealed a
deleted up-skirt photo of H.L, and his laptop contained
photographic images of underage males performing sexual
activities or with their genitalia and buttocks exposed.
Shue's laptop also contained several videos of H.L and
K.I. in the bathroom. Each video surreptitiously captures
H.L, K.L, or both, fully nude performing bathroom activities.
Shue appears in some of the videos, where he is either
setting up or manipulating the camera.
jury returned an indictment against Shue, charging him as
follows: 1 count of child abuse and neglect under NRS 200.508
for taking an up-skirt photo of H.L, inappropriately kissing
her, and surreptitiously recording her while she engaged in
bathroom activities (count 1); 29 counts of use of a child in
the production of pornography under NRS 200.710(2) for
surreptitiously recording H.L and K.I. while they were
engaged in bathroom activities (counts 3-4, 6-7, 9-10, 12-13,
15-16, 18-19, 21-22, 24-25, and 27-38), and taking an
up-skirt photo of H.L (count 2); 10 counts of possession of a
visual representation of sexual conduct or sexual portrayal
of a child under 200.730 for possession of video files of
K.I. performing bathroom activities (counts 5, 8, 11, 14, 17,
20, 23, and 26), a digital image of one young male fellating
another young male (count 40), and images of a boy with his
genitalia and buttocks exposed (count 41); and 1 count of
open or gross lewdness under NRS 201.210 for inappropriately
kissing H.I. (count 39).
trial jury found Shue guilty on all counts, and Shue received
a life sentence with parole eligibility beginning after 10
years. The district court entered a judgment of conviction,
from which Shue now appeals.
appeal, Shue argues that (1) 8 of his 29 convictions under
NRS 200.710(2) are impermissibly redundant, (2) Castaneda
v. State requires this court to reverse 9 of his 10
convictions under NRS 200.730, (3) Nevada's statutes
barring the sexual portrayals of minors are unconstitutional,
(4) the State presented insufficient evidence to support his
conviction of open or gross lewdness, and (5) his asserted
trial errors warrant reversal. We address these arguments in
turn. Shue's convictions under NRS 200.710(2) are not
issue here are those counts wherein a single video file
resulted in two charges against Shue under NRS 200.710(2)
because the videos captured both H.I. and K.I. Shue argues that
8 of his 29 convictions under NRS 200.710(2) are
impermissibly redundant because he can only be penalized for
each performance proved. The State counters that Shue
can be charged for each minor used in each
performance. We agree with the State; therefore, we affirm
Shue's 29 convictions under NRS 200.710(2).
initial matter, we construe Shue's argument as a unit of
prosecution determination. See Castaneda, 132 Nev.,
Adv. Op. 44, 373 P.3d 108, 110 (2016). "[Determining the
appropriate unit of prosecution presents an issue of
statutory interpretation and substantive law."
Id. (internal quotation marks omitted). "[W]e
review questions of statutory interpretation de novo."
State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226,
1228 (2011). "[W]hen a statute is clear on its face,
" we must afford the statute its plain meaning.
Id. (internal quotation marks omitted).
200.710(2) makes it a category A felony when a person
"knowingly uses, encourages, entices, coerces or permits
a minor to be the subject of a sexual portrayal in a
performance." (Emphasis added.) In Castaneda,
we observed that courts interpreting criminal statutes for
the proper unit of prosecution have consistently found them
ambiguous when "the object of the offense has been
prefaced by the word 'any.'" 132 Nev., Adv.
Op. 44, 373 P.3d at 111 (internal quotation marks omitted).
Those courts reasoned that the word "any" can be
interpreted "to fully encompass (i.e., not necessarily
exclude any part of) plural activity, and thus fails to
unambiguously define the unit of prosecution in singular
terms." Id. (internal quotation marks omitted).
In contrast to the word "any, " the term "a
minor" under NRS 200.710(2) plainly denotes the object
of the offense in singular terms and necessarily precludes